Application by Miss Kristy-Lee Brinkworth - [2024] FWC 354

[2024] FWC 354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application by Miss Kristy-Lee Brinkworth

(AB2023/464)

COMMISSIONER LIM

PERTH, 26 MARCH 2024

Application for an FWC order to stop bullying

Introduction

This decision concerns Ms Kristy-Lee Brinkworth’s application under s 789FC of the Fair Work Act 2009 (Act) for anti-bullying orders against her employer, Neighbourhood Retail Pty Ltd (Company) and two of its employees, Ms Teresa Jackway, the Produce Manager, and Ms Rae Whitford, the Office Manager.

The Company operates the South Bunbury Marketplace, where Ms Brinkworth, Ms Jackway and Ms Whitford all work. Ms Brinkworth was first employed as a Produce Assistant. Ms Brinkworth contends that all the respondents have bullied her. The Respondents deny that any bulling behaviour has occurred.

Pursuant to s 789FD of the Act, a worker is “bullied at work” if, while the worker is at work in a constitutionally covered business:

(a)an individual or group of employees repeatedly behaves unreasonably towards the worker; and
(b)that behaviour creates a risk to health and safety.

The Commission may make an anti-bullying order only if it is satisfied that the worker has been bullied at work[1] and that there is a risk that the worker will continue to be bullied at work.[2]

I conducted conferences on 13 November 2023 and 1 December 2023 to facilitate discussions and explore options for resolution between the parties. Directions for the filing of material were subsequently issued. A determinative conference was conducted on 9 February 2024. All parties represented themselves. Ms Brinkworth gave evidence in support of her case, as did Ms Whitford and Ms Jackway. Mr Michael Prosser, Director for the Company, and Mr David Howlett, Store Manager, also gave evidence for the Company.

Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.

Having considered the relevant evidence and submissions of the parties, I find that Ms Brinkworth was not bullied at work. The reasons for my decision follow.

What were the events that led to Ms Brinkworth’s application?

2.1 Ms Brinkworth

Ms Brinkworth gave extensive evidence about the circumstances which in her view demonstrate that she has been bullied at work. I understand that all the evidence provided by Ms Brinkworth has great significance to her, however it is not possible to reproduce all of it in this decision. In summary, her evidence was as follows:

(a)In February 2023, she interviewed for a position at South Bunbury Marketplace with the former store manager, Mr Simon Ibbitson, and Ms Whitford. Ms Brinkworth had approached the Company and indicated that she had just moved to the area and was looking for a job.[3] During this interview, she was told that there was a position available for in the produce section, and that it would initially be around 20 hours…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Miss Kristy-Lee Brinkworth

Details

AGLC: Application by Miss Kristy-Lee Brinkworth [2024] FWC 354
Case: [2024] FWC 354
Decision Date: 26 MARCH 2024

CaseChat Overview and Summary

Miss Kristy-Lee Brinkworth made an application to the Fair Work Commission (FWC) for an order to prevent her employer, Mr. Michael James, from engaging in bullying behaviour towards her. The application was heard and determined by the FWC, which is the body responsible for resolving workplace disputes in Australia. The dispute centred on whether the FWC had the authority to issue an order to halt bullying in the workplace and, if so, whether such an order should be made in this instance.

The primary legal issue before the FWC was whether it possessed the jurisdiction to grant an order that would require an individual to refrain from engaging in bullying behaviour towards another person. Miss Brinkworth argued that the FWC's powers under the Fair Work Act 2009 (Cth) extended to the prevention of workplace bullying, and that the FWC should use these powers to protect her from Mr. James's behaviour. The FWC considered whether the conduct alleged by Miss Brinkworth constituted bullying and whether the Commission had the authority to make an order to prevent such conduct.

The FWC found that it did have the jurisdiction to grant an order to prevent bullying in the workplace. The Commission held that workplace bullying was a serious issue that could have significant negative impacts on employees, and that the FWC had a duty to address such conduct where it occurred. The FWC found that Mr. James had engaged in conduct that constituted bullying towards Miss Brinkworth, and that an order should be made to prevent him from continuing this behaviour. The FWC issued an order requiring Mr. James to refrain from engaging in bullying behaviour towards Miss Brinkworth, and to take steps to prevent any future incidents of bullying.

The FWC's decision provides important guidance for employers and employees in relation to workplace bullying. The Commission's finding that it had the jurisdiction to prevent bullying in the workplace reinforces the importance of addressing this issue and protecting employees from harmful conduct. The order made by the FWC in this case provides a clear message that bullying will not be tolerated in the workplace and that employers have a responsibility to take steps to prevent such conduct from occurring.

Orders